Citation Nr: 22015665 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 19-15 944 DATE: March 18, 2022 ORDER New and material evidence having been received, the previously denied claim of service connection for a right leg or knee disability is reopened. New and material evidence having been received, the previously denied claim of service connection for a left leg or knee disability is reopened. REMANDED Service connection for a thoracolumbar spine disability, as secondary to service connected right hip deformity. Service connection for left hip disability, as secondary to service connected right hip deformity. Service connection for a right knee or leg disability, to include as secondary to service connected right hip deformity. Service connection for a left knee or leg disability, as secondary to service connected right hip deformity. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to November 1976. The case is on appeal from a June 2018 rating decision. In March 2022, the Veteran testified at a Board hearing. 1. Whether new and material evidence has been received, to reopen the previously denied claim of service connection for a right leg or knee disability. 2. Whether new and material evidence has been received, to reopen the previously denied claim of service connection for a left leg or knee disability. With respect to the left knee claim, by a January 2007 rating decision, a claim of service connection for left leg disability, also claimed left knee, was denied on the basis of no in-service event. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in March 2018. No new evidence or notice of disagreement was received by VA within one year of the issuance of the January 2007 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. With respect to the right knee claim, after the claim was also denied in January 2007, by a March 2010 rating decision, a claim of service connection for a right leg disability, also claimed as right knee, was denied on the basis that no new and material evidence was received to substantiate the in-service element of the claim. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received, again, until the present claim to reopen in March 2018. No new evidence or notice of disagreement was received by VA within one year of the issuance of the March 2010 rating decision. As the Veteran did not appeal the decision, that rating decision is also final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In a February 2022 medical opinion, the Veteran's private treating physician indicated that the current bilateral osteoarthritis of the Veteran's knees is caused by his in-service injuries. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a left leg/knee disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). As for the left knee, see also December 3, 2009 medical records from Henry Ford Hospital listing obesity as a contributing cause for the Veteran's bilateral knee arthritis which stems, in pertinent part, from the Veteran's lack of mobility and strength due to his service connection right hip deformity. As for the right knee, see also April 10, 2017 VA progress notes. REASONS FOR REMAND 3. Service connection for degenerative arthritis of the thoracolumbar spine, as secondary to service-connected right hip deformity. 4. Service connection for left hip osteoarthritis as secondary to service-connected right hip deformity. 5. Service connection for a right leg or knee disability, to include as secondary to service connected right hip deformity. 6. Service connection for a left leg or knee disability, to include as secondary to service connected right hip deformity. The Veteran contends that service connection for back, left hip, and bilateral leg or knee disabilities is warranted as it is the result of his service-connected right hip deformity. Specifically, the Veteran contends that the weakness, instability, imbalance, and difficulty with ambulation produced by the severity of his right hip deformity has caused him to fall twice in 2008 and 2016, at which times he injured his back, required surgeries, and have left permanent damages. The Veteran also asserts, in essence, that the overuse of his left hip to compensate for his weakness and general impairment of his right hip has caused him left hip arthritis. Lastly, the Veteran contends that his bilateral knee osteoarthritis is the result of many years of disproportioned weight distribution due to his right hip disability. See March 7, 2020 statement in support of claim; see also Board hearing transcript. The Veteran has been afforded multiple VA examination in connection with the claimed disabilities. As for the bilateral knee disability claims, a review of the Veteran's service treatment records (STRs) reflects that in November 1976, the health provider noted the Veteran required treatment to strengthen his right knee. See November 16, 1976 progress notes. The Veteran was discharged from service that same month. During a September 1978 VA hip examination, the Veteran complained of right knee pain and a sensation of stiffness that had its onset in service. As to the relationship between his right knee and his right hip condition, the examiner opined that it is not at all unusual for hip conditions to be relatively free of symptoms (i.e., knee pain) referable to the hip. No radiographies were taken for the right knee in connection with the examination. A subsequent August 1996 VA hip examination report shows that the Veteran continued to complain of right knee pain, swelling, stiffness, and tremors. An October 2001 VA examination report indicates that the Veteran has a history of right knee injury while in the military and provided a diagnosis of mild degenerative arthritis of the right knee. A February 2010 examination report reflects the Veteran continued to endorse right knee pain which he attributed directly to his in-service accident when he fell off a top bunk and landed on his right side hitting a can. The examiner noted the Veteran walks with a limp on the right lower extremity and showed instability and a wadding gait pattern when walking without a cane. While the Board notes that the Veteran has claimed his right knee disability as secondary to his service-connected right hip disability (See September 2018 compensation claim) STRs and subsequent VA examinations reasonably raise an alternate theory of service connection on a direct basis. Accordingly, the Board will also consider the particular theory as one of direct causation. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (indicating that, in direct appeals, all filings must be read in a "liberal manner"). The Veteran was most recently afforded a VA examination in connection with this claim in May 2018. The examination report confirms a diagnosis of bilateral knee arthritis. The Veteran reported bilateral knee pain for several years that started with his right knee, followed by his left. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. In support of her opinion, the examiner concluded that the Veteran's "degenerative findings are consistent/uniform in all "weight bearing" joints of the body bilateral hip, lower back and bilateral knee joints [for which] the conditions are predisposed conditions of aging." The examiner added that the Veteran's degenerative arthritis is more related to inherited biology and lifelong stress on all the weight bearing joints. In a March 2022 private medical opinion, the Veteran's private orthopedic neurosurgeon, Dr. M.L., indicated that the Veteran's knees have also "started to become" arthritic at this point and opined that the Veteran's osteoarthritis of the knees is caused by his service and his injuries sustained while in service. Nonetheless, the opinion does not contain a rationale. The Board notes that while the above VA and private examinations and/or opinions exams referenced the Veteran's knee disability and suggest a possible connection to service on either a direct or a secondary basis, the examinations are not wholly sufficient as to the actual etiology and nature of the claimed disability. Additionally, they lack a proper nexus opinion in order to decide the Veteran's claim. Moreover, while the opinions attempted to address the causation aspect of the secondary theory of service connection, they all failed to consider the aggravation aspect provided in 38 C.F.R. § 3.310. With respect to the May 2018 VA examination report, the Board notes that the examiner appears to have disregarded the Veteran's statements as to the onset of his disability and the medical evidence of record suggesting an onset of complains since at least 1978. Moreover, the opinions are not completely adequate to address a direct theory of service connection for the right knee disability claim. In that regard, the 1978 referred to the knee pain as a reflect of the Veteran's right hip, while the 2022 private opinion considered it a separate disability caused by complications of the right hip. As such, a remand is warranted for another VA examination and opinion to reconcile the medical evidence of record and comment on the etiology and nature of the claimed disability pursuant to the directives set forth below. With respect to the Veteran's left hip disability, a September 1978 VA examination report reflects that per radiographic studies, the Veteran had deformities in both hips. The VA examiner opined that deformity of both hips is most likely secondary to slipped femoral epiphysis "or a mild case of congenital coxa vara." At this point, the Board notes that congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303 (c); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Congenital defects, however, can be subject to superimposed disease or injury and if, during an individual's military service, superimposed disease or injury does occur, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). An October 2001 VA examination report confirms evidence of prior slipped femoral epiphysis in both hips. No opinion was rendered as to the etiology of the disability. A Hip and Thighs Disability Benefits Questionnaire (DBQ) was completed in May 2017 by a VA medical provider per the Veteran's request. The examiner noted that in 2009, the Veteran slipped and fell at work due to "weakness of his lower extremities," which triggered his right hip pain, followed thereafter by left hip pain. The examiner provided a diagnosis of moderate to severe osteoarthritis of the hip joints bilaterally. The Veteran was afforded a VA examination in connection with this claim in May 2018. He reported pain in both hips. He stated that because of the pain in the "right knee," he shifted weight towards the left side, causing pain in the left hip for several years. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. In support of her opinion, the examiner concluded that the Veteran's "degenerative findings are consistent/uniform in all "weight bearing" joints of the body bilateral hip, lower back and bilateral knee joints [for which] the conditions are predisposed conditions of aging." The examiner added that the Veteran's degenerative arthritis is more related to inherited biology and lifelong stress on all the weight bearing joints. The Veteran was most recently afforded a VA examination in connection with this claim in June 2020. The report shows a diagnosis of bilateral hip arthritis with an onset in 2012. The examiner opined that Veteran's left hip pain and arthritis condition is not due to or result of Veteran's right hip deformity slipped femoral epiphysis. She indicated that, per medical literature, femoral epiphysis is caused by ball at the head of the femur that slips off the neck of the bone in a backwards direction. This condition is more likely to occur during a growth spurt and is more common in boys. The examiner concluded that arthritis is not a complication of femoral epiphysis. In a March 2022 private medical opinion, Dr. M.L. indicated that the Veteran has complained of bilateral hip pain for over 40 years (i.e., 1982). The physician confirmed a diagnosis of bilateral hip osteoarthritis attributed the Veteran's recent falls due to his lower extremities giving away. The Board finds that further clarification with respect to this claim is necessary regarding the etiology of the claimed disability. First, the September 1978 VA examiner described his left hip pain as "most likely" secondary to slipped femoral epiphysis, and also considered congenital coxa vara as an alternate etiology. Second, the May 2017 VA examiner considered the Veteran's left hip disability a sequalae of his 2009 fall, which in turn the Veteran contends was the result of the weakness and imbalance caused by his service-connected right hip disability. Third, the May 2018 VA examiner opined that the Veteran's left hip disability is the result of aging and inherited biology, and the June 2020 VA examiner opined that the claimed disability has no relationship to the Veteran's femoral epiphysis. Additionally, while the opinions, again, only attempted to address, at least partially, the causation aspect of the claim, they all failed to consider the aggravation aspect provided in 38 C.F.R. § 3.310. The Board finds that another VA examination is warranted in order to reconcile the medical evidence of record, clarify the current disability element of the claim, and comment on its nature and etiology in compliance with Board's remand directives below. Lastly, with respect to the Veteran's back disability, in a March 2018 medical statement, the Veteran's treating physician indicated that the Veteran has suffered falls as his hips became unstable, leading to back disabilities requiring surgical repair. Dr. R.C.T. noted that the Veteran's falls are related to his chronic right hip pain which is secondary to an injury sustained in the Army. See March 8, 2018 statement from Dr. R.C.T./ St. John Providence Health System. No rationale was provided in support of his conclusion. In March 2018, a Thoracolumbar Disability Benefits Questionnaire (DBQ) was completed by a VA provider per the Veteran's request. The examination report contains diagnoses of thoracic and lumbar spine degenerative arthritis. The VA examiner indicated that the Veteran is service connected for a right femur disorder. The examiner opined, in essence, that the Veteran's right hip disability has caused progressive loss in ROM resulting in gait disturbance, in turn contributing to a fall in 2009 resultant in lumbar spine disc herniation and associated weakness in his lower extremities. This weakness, in turn, resulted in another fall in 2016 fall causing a thoracic fracture requiring surgical repair. The examiner also noted that the Veteran requires the constant use of a cane and occasional use of a walker to assist with ambulation. The examination report does not contain a nexus opinion nor rationale. The Veteran was then afforded a VA examination in connection with this claim in May 2018. The examination report confirms diagnoses of thoracic and lumbar spine degenerative arthritis. The examiner made reference to the 2016 fall requiring surgical repair. The Veteran reported chronic low back pain that had been going on for several years, but that the increased daily pain had been going on for only a few years. The examiner opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service connected condition. In support of her opinion, the examiner concluded, again, that the Veteran's "degenerative findings are consistent/uniform in all "weight bearing" joints of the body bilateral hip, lower back and bilateral knee joints [for which] the conditions are predisposed conditions of aging." The examiner added, with relevance to this case, that the Veteran's degenerative arthritis of the thoracolumbar spine is more related to inherited biology and lifelong stress on all the weight bearing joints. While not expressly noted, the opinion implicitly attributes the Veteran's arthritis of multiple joints of his body to his obesity. To that effect, additional medical evidence of record shows that the Veteran's provider noted a history of back pain and notes that his problem is complicated by morbid obesity; that the Veteran, in essence, attributes his lack of mobility and strength to perform exercise due to obesity; and that the evidence associates arthritis to obesity. See July 7, and December 3, 2009 progress notes from Henry Ford Health System. The Board points out that while obesity itself cannot qualify or cannot be the subject of service connection, it may in fact act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a); see also VAOPGCPREC 1-2017 (Jan. 6, 2017); Marcelino v. Shulkin, 29 Vet. App. 155 (2018). In a March 2022 private medical opinion, the Veteran's private orthopedic neurosurgeon, Dr. M.L., indicated that the Veteran has complained of bilateral hip pain for over 40 years which most recently has resulted in frequent falls. While Dr. M.L.'s opinion appears to be aimed towards his medical theory as to the etiology of the Veteran's left hip and bilateral knee disabilities, he also noted that these fallings episodes caused by weakness of the Veteran's right lower extremity disability have led to further conditions such as the vertebral thoracic fracture sustained recently. The Board finds that with respect to this issue, neither the March 2018 medical opinion from Dr. R.C.T, the March 2018 Thoracolumbar spine DBQ, the May 2018 VA examination and opinion, and the March 2022 opinion from the Veteran's treating physician are wholly sufficient to decide the claim. While the opinions, at most, appear to suggest a relationship between the Veteran's back disability and his service-connected right hip disability, they also appear to attribute the Veteran's falls and consequent back issues to the overall weaknesses and imbalance associated with his bilateral knees and general lower extremities disability, which are issues herein remanded for further clarification and consideration. For the reasons set forth above, the Board finds that a remand is warranted to afford the Veteran a new VA examination with respect to all claims by an orthopedic specialist to reconcile the medical evidence and multiple VA and private opinions of record, to clarify the current disability element of the claims, and to comment on the extent, nature, and etiology of the claimed disabilities. In light of the remand, updated VA treatment records must be obtained. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records dated since February 2021. 2. Request from the Veteran, and assist in obtaining, any outstanding private treatment records associated to these claims. 3. Thereafter, schedule the Veteran for a VA examination by an orthopedic specialist to address the following questions: a) With respect to the bilateral knee disabilities: The physician should first identify whether the Veteran has a bilateral knee disability, which may include osteoarthritis. (i) First, and only for any identified "right knee" disability, the examiner should provide an opinion as to whether it is as likely as not (50 percent or greater probability) that any identified right knee condition or disability, had its onset during, or is otherwise related to, the Veteran's service, to include the in-service incident when he fell off a top bunk. (ii) If not to (i), the examiner should then provide an opinion as to whether any identified "bilateral knee disability" is proximately due to, or aggravated by "obesity as an intermediate step," due to the Veteran's service-connected right hip disability, or whether it is the result of, or aggravated by, the Veteran's service-connected right hip deformity itself. Consideration should be given to: (1) STRs showing a medical recommendation for strengthening the right knee; (2) the Veteran's complains of right knee pain during the 1978 VA examination; (3) additional evidence of record suggesting causation and/or aggravation due to service-connected right hip deformity; and (4) medical evidence suggesting a possible relationship between the Veteran's bilateral knee arthritis and obesity. b) With respect to the Veteran's left hip disability: The physician should first identify whether the Veteran has a congenital defect, to include congenital coxa vara contributing to any left hip disability. For VA purposes, a disease is capable of improving or worsening, while a defect is static in nature. The physician should also identify other left hip conditions, to include slipped femoral epiphysis and/or osteoarthritis. The physician should then provide the following opinions: (i) If any identified coxa vara is deemed a congenital defect, is it at least as likely as not (50 percent or greater probability) that it was subject to a superimposed disease or injury during service? (ii) If not a defect, is it clear and unmistakable (obvious, manifest, and undebatable) that coxa vara pre-existed service? If yes to (ii), is it clear and unmistakable (obvious, manifest, and undebatable) that pre-existing coxa vara WAS NOT aggravated during service, or is it clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress during service? (iii) For any additional left hip disability, the examiner should then provide an opinion as to whether it is as likely as not (50 percent or greater probability) that the identified condition(s) or disabilities, whether superimposed or not, are proximately due to, or aggravated by "obesity as an intermediate step," or the result of, or aggravated by, the Veteran's service-connected right hip deformity. Consideration should be given to: (1) The 1978 and 2001 VA examinations reports noting evidence of a bilateral hip deformity; (2) the Veteran's reports of shifting weight to his left side to compensate for pain in his right lower extremity; (3) the March 2022 private opinion from Dr. M.L. indicating bilateral hip pain for over 40 years; and (4) the reasons for remand set forth above. c. With respect to the Veteran's back disability: The physician should first identify any thoracolumbar spine disabilities, to include degenerative arthritis, disc herniation of the lumbar spine, and/or status post thoracic fracture. For any identified thoracolumbar spine disability, the physician is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified thoracolumbar disability is proximately due to, or aggravated by, "obesity as an intermediate step," due to service-connected right hip deformity, or the result of, or aggravated by, the Veteran's right hip deformity itself. Consideration should be given to: (1) Dr. R.C.T.'s opinion that the Veteran's falls are related to his chronic right hip pain which is secondary to an injury sustained in the Army; (2) the March 2018 VA examination report suggesting that the Veteran's right hip disability has caused progressive loss in ROM resulting in gait disturbance, in turn contributing to falls in 2009 and 2016; (3) the May 2018 examination report indicating that degenerative arthritis of the thoracolumbar spine is more related to inherited biology and lifelong stress on all the weight bearing joints; and (4) the July and December 2009 progress notes from Henry Ford Health suggesting a connection between obesity and the Veteran's overall arthritis. (Continued on the next page) A complete rationale must be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.